The basic unit of contract prose is, surprise surprise, the sentence. One issue of contract layout is that of aggregation—how do you group sentences into sections and, if necessary, articles? The other is that of division—when is it appropriate to break up a sentence?
Division involves enumerated clauses. A contract sentence might consist of introductory text and a series of parallel elements. It might make such a sentence easier to read if you enumerate the parallel elements. And if the parallel elements are long enough, it might make them easier to read if you treat each of them as if it were a separate paragraph—if you were to tabulate them.
This post relates to introductory text.
If the enumerated clauses are anything other than short and simple, the introductory text will likely include the following and end with a colon. Today I had occasion to consider the position of the following in introductory text.
The obvious place to put the following is at the end of the introductory text, as in this example (example A):
The license granted to Acme under section 6.1 includes the right to sublicense, on condition that the terms of the sublicense include the following:
But consider this example (example B):
The Committee Chair must do the following with respect to each meeting of the Committee:
And this one (example C):
Acme shall transfer to Widgetco each of the following, with its certificate of title attached:
I suggest that the position of the following in examples B and C is unobjectionable.
Now consider this example (example D):
If any of the following occurs and the Licensor notifies Acme that it
wishes to terminate[is terminating] this agreement in accordance with this section 6 , including[and includes] in that notice its reason for wishing to terminate[terminating] this agreement, this agreement will terminate when Acme receives that notice:
I suggest that in this example, the following is too remote from the tabulated enumerated clauses that follow. Instead of the following, I used a new defined term, Licensor Termination Event, and put immediately below this sentence a subsection containing the autonomous definition of that defined term. Here’s what the revised sentence looks like:
If a Licensor Termination Event occurs and the Licensor notifies Acme that it
wishes to terminate[is terminating] this agreement in accordance with this section 6 , including[and includes] in that notice its reason for wishing to terminate[terminating] this agreement, this agreement will terminate when Acme receives that notice.
So I offer the following general proposition: It’s OK for the following not to be placed at the end of the introductory text preceding a colon and a set of enumerated clauses if the following occurs in a single independent clause or the last independent clause in a compound sentence. The independent clause can either stand on its own or have one or more subordinate clauses, as in examples B and C. (Go here for Wikipedia on sentence clause structure.) But the following is too remote when it’s separated from the colon by one or more other independent clauses, as in example D.
11 thoughts on “Position of “The Following” in Introductory Text Preceding a Set of Enumerated Clauses”
I like your general proposition and agree that when a reference to ‘the following’ is too far from the referenced material, a drafter can (a) recast the provision to put ‘the following’ at or near the end of the introduction, or (b) simplify the sentence structure by using a defined term.
That said, I continue to be puzzled by language of wishing, which seems never necessary. For example, what’s wrong with omitting reference to wishes in a termination-by-notice provision like this:
‘This agreement will terminate when Acme receives a notice from the Licensor under this section 6 stating that this agreements terminates when Acme receives the notice and that the reason for the termination is one or more of the following:’
I agree with the aversion to “wishes” and its slightly louche sibling “desires,” but the wording can be even more straightforward and active: “[If a Licensor Termination Event occurs], Licensor may terminate this agreement [for any of the reasons set forth in the following subsection] by so notifying Acme and including in that notice a statement of Licensor’s reason for termination. Termination pursuant to this [section, subsection, clause, whatever] will be effective upon receipt by Acme.”
One thing the examples don’t make clear is whether “this section 6” is a general termination clause or a special provision, in which case you might need to have a general savings clause that preserves the other reasons for termination that might exist.
Let us then be the nub of the no-language-of-volition coalition. Catchy name.
Good point re special/general termination provisions. Will this do? ‘In addition to other termination provisions in this agreement….’ Or (perhaps better if true) ‘in addition to the general termination provisions in section X of this agreement….’
If we are really going to take the scalpel to the provision, how’s this:
‘This agreement will terminate when Acme receives a termination notice from the Licensor giving as reason one or more of the following’? (22 words)
I don’t like the “this agreement will terminate” formulation; it’s a circumlocution that doesn’t straightforwardly name the agent. It’s a matter of discretion with the licensor, so say “the Licensor may terminate this agreement….”
Saving space isn’t everything.
Check out my changes.
I take your point about wishes, seeing as I mock its use in purpose recitals. A better choice would be wants.
I think my version reflects that notice and termination can be two different things. And my one sentence flows better than your two. And youse got abstractnounitis (termination, receipt.
I believe I’ve resolved your problem. Check out my changes.
Better (I assume you meant to delete the “wishes” from the latter part as well as from the beginning, though, so it reads “its reason for termination”).
I still don’t understand why you think the “this agreement will terminate” formulation is superior to the active voice with language of discretion. Term and termination clauses are usually structured as “This agreement takes effect on its effective date and terminates [at the end of some fixed period],” with another sentence or subsection saying that “a party may terminate this agreement [under the following circumstances].” What’s wrong with applying that structure to this particular instance?
Also, [trigger warning: grammatical niggle ahead] since in standard usage, “it” refers to the immediately preceding noun, you’d be referring to Acme and not the Licensor; it would take at least a second pass to establish the context (which I guess makes the “it” a minor ambiguity).
Yes, I made those fixes. But I used terminating instead of termination. Please report immediately for abstract-noun reindoctrination, please!
All this was prompted by my wanting to distinguish between when you say you want to terminate and (as is often the case) the later time when the contract terminates. It’s not an active-voice, passive-voice thing, as will terminate isn’t in the passive voice. (I don’t know offhand what labels to use instead.)
Dear Ken and Vance,
‘Acme: When you receive this notice, the contract terminates for the the following reason: [Reason]. –Licensor’
As far as I can see, that’s all the notice need say. Arguably even ‘when you receive this notice’ is surplusage.
If that’s the notice, the contract provision teeing it up need say only the following:
‘This contract terminates when Acme receives a notice from the Licensor so stating and specifying
[one of the following reasons]
[a reason stated in section X of this agreement]
[a Licensor Termination Event]’.
Good riddance to language of volition, regardless of verb.
As for language of discretion, it may be desirable in another context, but has no place in a provision specifying what makes the instant of termination occur.
The logical structure of such a provision is ‘this agreement terminates when B receives a notice from A with content X’. Anything more or different is not so much circumlocution as irrelevance.
As always, I could be wrong. –Wright
I came up with this approach as a way to handle termination that occurs some time after notice is received. I’ve been experimenting with using the same approach when termination occurs when the notice is received. I don’t know if I’ll stick with that. After all, that’s not what this post was about.